Following the recent ‘bedroom tax’ hearing in the UK Supreme Court, Jed Meers from the University of York considers the potential implications of the upcoming judgment for policies relying on elements of conditionality

The much litigated Removal of the Spare Room Subsidy – more commonly known as the ‘bedroom tax’ – has limped its way to the UK Supreme Court.* Many will understandably assume the case has few consequences beyond the claimants involved. The policy is fairly narrow in scope and to some extent has been superseded by the upcoming lowering of the benefit cap and changes to Local Housing Allowance (not to mention the ever-imminent Godot of social policy, Universal Credit). There is, however, more here than immediately meets the eye.

The court recognised the importance of the case by assigning seven justices (instead of the usual five) and the Department for Work and Pensions wheeled out its “star at the bar” James Eadie QC to defend the claims. This is because the case is far from hermetically sealed within the confines of the amended Housing Benefit Regulations 2006. Rather it has the potential to address the viability of discretionary-based schemes of benefit provision, the associated standard of review adopted by the Courts, and the role (or lack) of international conventions in reaching these decisions.

This short blog post seeks to squish these wider issues into the confines of a discussion on the space for conditionality in lawful policy-making. First, it is worth briefly outlining the nature of the challenges before the court.

This hearing was a series of three joined appeals – MA, Rutherford and A – each dealing with a different class of claimant: a wider category of those who require an ‘extra’ bedroom by reason of a disability (most of the MA claimants), the narrower sub-categories of adults who cannot share a room by reason of disability and children who require overnight care (the Rutherford and Carmichael MA claimants), and those who need to remain in their property because it has been adapted as part of their inclusion in a domestic violence sanctuary scheme (the A claimant). The key issue was the lack of statutory exemption for these populations from the ‘bedroom tax’ and their consequent reliance on a locally administered Discretionary Housing Payment scheme.

The legal arguments focused, among other things, on alleged discrimination on the grounds of sex and disability under Article 14 of the European Convention on Human Rights, particularly instances of so-called Thlimmenos discrimination – the failure to treat differently those whose situation warrants it, without an objective and reasonable justification. The main thrust of attack by the claimants was that the ‘bedroom tax’ regulations, in not offering a statutory exemption to these groups while providing one for others, were unlawfully discriminatory.

Thinking about conditionality, the judgment will be important for three key reasons. First, it will have implications on the ability of the government to operate its hybrid ‘cut-and-devolve’ approach to welfare reform. Flagship policies like the benefit cap, the removal of council tax benefit and the closure of the independent living fund have all relied on local discretionary pots to pick up the pieces (an issue picked up previously on this blog by Deven Ghelani), with a small number of statutory-based exemptions. This allows the government to avoid delineating where the boundaries of a reform lie, and puts local government in a difficult position of dealing with widespread impacts with tight, centrally determined (and often, not ring-fenced) budgets.

We have seen this lead to the local imposition of conditionality. The Court was directed to Harrogate Borough Council’s DHP application form as an illustration of how different applications to these discretionary schemes can be when compared to the standard housing benefit means test. This structural point is of particular importance. The appeals – and Thlimmenos discrimination challenges more generally – are focused on the structural discrimination within the scheme, not just the impact on the individual claimants. In other words, the fact a claimant is receiving a discretionary payment may not be good enough. These hybrid models – by ‘exempting’ some and leaving others to the mercy of a discretionary power – are inherently systemically discriminatory, so a finding against the government could imply a positive duty on the state to design schemes without such internal differential treatment in similar contexts.

Secondly, the case will have implications for the standard of review adopted in social security appeals. In short, the lower judgments determined that an indirectly discriminatory scheme would be justified – and therefore lawful – unless it is ‘manifestly without reasonable foundation’. This sets the bar high, and gives the Secretary of State a sizable degree of manoeuvre. Indeed, it was held by the Master of the Rolls that the ‘stringent nature of the test requires the court to be satisfied that there is a serious flaw in the scheme’ to determine it lacks justification. This test is explicitly under challenge for the first time in these appeals, and the Supreme Court will have to come to a position on its applicability in the social security context. By potentially opening the way for a higher standard of review, this could have far reaching consequences for further appeals to measures which reduce entitlements in favour of more conditional arrangements. In other words, the government may have to advance stronger reasons than ‘localism’ and ‘budget discipline’ to justify the differential treatment.

To summarise, the decision of the Supreme Court in these joined ‘bedroom tax’ appeals has implications far outside the confines of the policy. It will directly affect the ability of the government to maintain a hybrid system where some get statutory entitlements and others rely on parallel conditional schemes. More broadly, it may clarify the public law standards to which these structures can be held to account by the court. The decision is unlikely to come quickly; perhaps May at the earliest. Its effects, however, will define how ongoing litigation tackles a raft of other reforms: the lowering of benefit cap, changes to Local Housing Allowance, and various elements of Universal Credit, amongst others.

2 Responses to Battling the bedroom tax: the wider implications of the Supreme Court hearing

As a welfare rights practitioner, I have a number of clients who are awaiting the Supreme Court judgement as the current situation of non award of DHP or partial award are leaving them in hardship. They are both cases of couples unable to share due to disability. The aspect that interests me is the degree of difference in how discretion is applied by LAs, where the government has effectively allowed a system to develop that seems to practitioners to be ‘random’, ‘a lottery’ or ‘too onerous’ in its administrative requirements or conditionality.

It amazes me that LAs would withhold DHPs in Carmichael type-cases, especially given it is clearly unjustifiable on the basis of Rutherford alone – notwithstanding some of the dodgier UTT decisions! Though being in limbo until this comes out doesn’t help I suppose.

Conference

Latest Comments

You also have an exact and clear idea of how all this affects people who are actually caught up in it. Unfortunately, the people who are responsible for these policies and decisions have never had to deal with it so there is no understanding and no empathy. We are losing our humanity in today's society.

Why would people then bother to make a home and spend money on it? We have to get away from this mindset that has now taken hold that Social Housing.....hate that term, is just temporary to suit your immediate needs. People should not have to up sticks all the time because a child gets older etc. When the old system was in place ie older people with larger homes than they needed they were offered incentives to downsize. In the 90's more Older peoples accommodation was built. Bungalows, Sheltered Housing etc. People were given help with removal costs. This has all changed. To make someone move from a home they have been in for years is cruel if it is not voluntary. I have been in my home since it was built. My daughter moved out as she should when grown up to make her own home. So after 23 years with roots well and truly down, should I be made to move? I have my granddaughter to stay. My daughter's room is now for her and was also an office when I worked from home. I could not fit my home into a small 1 bedroom flat. I do not want people living above me. This idea that if you live in Social Housing it is just accommodation but if you own it is your home is totally wrong. My parents moved willingly into Sheltered Housing but the change affected them drastically. My dad became stressed and ill and died a year later and my mother never settled and died a few years later. This was because they uprooted themselves and left their home and all the memories and familiar surroundings. Unfortunately like most issues these days, the humanity is being taken out of it.

Great resources on linking welfare sanction and conditionally and key social policy considerations with human rights principles (including dignity, non-discrimination). These considerations have a huge impact in narratives around poverty and vulnerability, and should be closely looked at by policy decision-makers and street-level bureaucrats.

Ok. I don’t agree with the bedroom tax but I do feel it would be a better option if housing rules were changed. For example why do they wait until kids are over 10 until giving families two bedrooms?
Then I also think housing should be fit for purpose so I believe when they move someone from a one bedroom to a 2 or 3 it should be with the understanding only until the children grow up and leave home then they should have their Tennancy moved back to something more suitable again like a one bedroom.

A fine well written and clear example of what is broken in our welfare system.
They are asking for submission for the next select committee meeting on welfare and I would submit this post if it were my choice.
It is a vicious cycle for some who have no chance of finding work however hard they might try. It is the employers who ultimately make the decision if employees are fit and ready to work, not the DWP.
Having a budget of £2 per day for food , job searching activities, keeping your appearance and strength up, and having to jump through hoops and tick boxes on all those strength zapping, soul destroying schemes courses and programs that do nothing but heap yet even more pressure and stress.
The affects of stress on both mental and physical health are well documented and nothing can be more stressful than not knowing week in, week out, that your hand to mouth existence is constantly at risk.
Sanctions are death sentences for some, no getting away from that fact, those charged with administrating the regime should hang their heads in shame, it is those who should make the stand to bring about change.
Or do they deceive themselves into believing long time shirker Jim who they sanctioned last month and who has not been seen again at the local JCP, Is now enjoying the fruits of his labor thanks to the Works Coaches helpful push they so desperately needed.
So clearly sanctions work and a good done job done by me, high five everyone.